IMPORTANT POINT
The court emphasized the importance of proving ownership and complying with the rules of non-joinder of parties and limitation in civil suits.

ORDER :

1. This Second Appeal is filed under Section 100 of the Code of Civil Procedure, 1908 (`CPC’ for short) being aggrieved and dissatisfied with the judgment and decree dated 22.11.2023 passed in Regular Civil Appeal No.145 of 2019 passed by the learned 8th Additional District Judge, Bhuj at Kachchh whereby the appeal preferred by the appellants herein was dismissed and the judgment and decree dated 25.10.2019 passed in Regular Civil Suit No.27 of 2009 by the Additional Civil Court, Mandvi-Kutchch, wherein the suit of the appellants was dismissed, was confirmed.

2. The appellants preferred the suit for recovery of possession of the suit land R.S.No.159 of village Mota Goniyasar, Dub-district Mandvi-Kutch and also for cancellation of registered sale deed dated 25.03.1996 stating it as null and void by stating that the suit land was ancestral land of the plaintiff as the status of Inamdar; that the suit belonged to plaintiffs’ ancestor Jadeja Dungarji Sabraji and Deshalji Ganda and it was placed under mortgage before Joshi Shivji Vaghaji in Vikram Samvant 1947 Kartak Sud 7th by Ruparibai, the suit land was further sold out with mortgage by the heirs of Joshi Shivji Vaghaji before Shri Swaminarayan Nar Narayan Dev Temple on Vikram Samvant 2003 Magsar Vad 11th and it was under possession of Pragji Ramji as the agriculturist of vitantar Shri Swaminarayan Nar Narayan Dev Temple; the redemption deed was executed by Shri Swaminarayan Nar Narayan Dev Temple on 6.7.2007 and there is no right of Pragji Ramji as he was the agriculturist of the mortgagee; that the possession of Pragji Ramji is illegal and the heirs of the Pragji Ramji sold the property to the defendants which is challenged. It is further stated by the petitioners in the suit plaint that the said Pragji Ramji filed case no.990 of 1971 for the possessory right under Inam Abolition Act and his name was not running in the land, even though he received an order in his favour; that the right of tenancy on the property which was under mortgage was denied and stated that the order was without their knowledge and without service of any notice; that the execution of sale deed on 25.3.1996 by the heirs of Pragji Ramji in favour of the defendant is not legal and therefore the suit is filed.

3. Heard learned advocate Mr.Barot for the appellants.

3.1 He submitted that both the courts below have erred in holding that the plaintiff has not succeeded in proving the ownership on the suit land; that the defendants are not having any rights on the suit land; that both the courts below have erred in holding that the suit is suffering from non-joinder of parties and also that it was a time barred suit; that the appellants were not a party before the revenue authority and hence the order is not applicable to the appellants; that the plaintiffs had no knowledge of the said proceedings; that the appellants have mortgaged the suit property to one Joshi Shivji Vagyhji and therefore the appellants are original owners and have valid title over the suit property; that the appellants have redeemed the mortgage.

3.2 He submitted that the suit cannot be said to be filed after unreasonable delay as the ancestors of the present appellants are the original owners of the suit land and thereafter, the suit land came to be mortgaged with one Shri Shivji Vaghji Joshi; that the said mortgagee transferred the mortgage rights to one Shir Swaminarayan Temple, Bhuj with a rider of redemption of mortgage; that the said mortgage was redeemed in the year 2007; that the suit premises is mortgaged property and therefore there cannot be any tenant of mortgaged property; that the orders passed by the learned Special Mamlatdar, Bhuj in the year 1972 whereby the inferior holder of the Swaminarayan Trust was declared as tenant/occupant of the suit land, however, the Swaminarayan Trust was a mortgagee and mortgagee does not have any legal right with and therefore the orders passed by the Special Mamlatdar, Bhuj was without juri